from the because-hollywood-once-told-us-someone-was-dr.-evil dept

For a while we had followed the bizarre situation with Megaupload's servers. As you may recall, the Justice Department seized them all, following its criminal indictment against Megaupload and many of its executives. However, soon after seizing all of the company's servers, the DOJ announced that it no longer needed them and told the hosting company that had them that the data on them could be destroyed. We pointed out that this seemed like a clear case of destruction of evidence by the DOJ. First, it seized pretty much all of the assets of a company, prior to any conviction, and then before any actual judicial proceedings, asked for most of those assets -- many of which could include exculpatory evidence -- to be destroyed. It seemed... quite questionable. That resulted in a bit of a legal battle, as the hosting company storing them, Carpathia, asked what it should be doing (since it's suffering from the cost of keeping the servers). Megaupload sought to buy the servers, but the DOJ has blocked that effort. Last we'd heard, the judge had told everyone to work it all out by themselves.

This effort was stopped because the U.S. didn’t want Kim Dotcom to have access to the files. Hoping to get out of this stalemate the Court then suggested that all affected parties should get together and come up with a solution, thus far without success.

“In separate written requests in the past year both Carpathia and Megaupload have asked Magistrate Judge Anderson – who was appointed by Judge O’Grady to mediate the cloud storage server data issue – to preside over follow-up negotiations on data preservation and consumer access,” Rothken tells TF.

“The US DOJ has shown little interest in such negotiations and the Judge has not been inclined to set any additional meetings,” he adds.

The whole situation is bizarre. Individuals who had legitimate content stored on Megaupload are still asking for access to get back their content, but the DOJ doesn't seem to care at all. In fact, it's coming up with increasingly bizarre excuses to justify shutting down an entire business based on the entertainment industry's say so, and seems to have no qualms about how many people this has created massive problems for.

As the Aereo case is about to be heard, and various concerns about its impact on cloud computing are being raised, people should look over at what's happening with Megaupload's servers and be even more concerned. If the broadcasters succeed in redefining what is a "public performance," it's entirely conceivable that the DOJ could choose to do the same to other cloud services you rely on -- and there seems to be no recourse whatsoever.

from the of-course-they-do dept

Last summer, we wrote about the case of Adel Daoud, an American teenager who was caught in one of the FBI's home grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen.

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted:

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA
materials to the defense, in this case, the Court finds that the disclosure may be necessary. This
finding is not made lightly, and follows a thorough and careful review of the FISA application
and related materials. The Court finds however that an accurate determination of the legality of
the surveillance is best made in this case as part of an adversarial proceeding. The adversarial
process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making
such a determination, the adversarial process is integral to safeguarding the rights of all citizens,
including those charged with a crime. “The right to the effective assistance of counsel is thus the
right of the accused to require the prosecution’s case to survive the crucible of meaningful
adversarial testing.”

But a court’s preference for the adversarial process—a circumstance
that exists in all litigation—cannot serve as a basis for declaring that
disclosure of FISA materials is “necessary to make an accurate determination
of the legality of the surveillance” under the statute. Congress envisioned
that FISA litigation be handled ex parte, in camera, with disclosure the rare
exception.... Yet
the district court’s reasoning would turn that regime on its head. A court
could always say that an adversarial proceeding would be the “best” way to
determine the legality of the FISA collection. To compel disclosure on that
basis would trivialize FISA’s necessity standard and work a sea change in
FISA litigation.

Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that!

Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal:

The district court also misjudged the damage to national security that
could result from disclosing the FISA applications and orders, even to cleared
defense counsel under a protective order, as substantiated by declarations
from the Attorney General of the United States and the Acting Assistant
Director of the FBI for Counterterrorism. A “need-to-know” must exist before
classified information may be disclosed, even to those who possess a security
clearance, and that essential prerequisite is present only where disclosure to
defense counsel is “necessary” for a court to adjudicate the legality of the
FISA collection.

When viewed under the correct “necessity” standard, nothing about the
challenged FISA collection justifies the district court’s outlier decision. As the
classified record makes clear, the ex parte process that the statute provides
readily permits an accurate determination that the FISA collection was
lawful, and the defendant’s allegations to the contrary are unfounded. A court
reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.

from the I-may-actually-miss-this-guy-once-he's-gone dept

Another FISC opinion and order has just been released dealing with the NSA's retention of metadata that may be used as evidence in some ongoing lawsuits against the government. The DOJ had originally asked to hold onto the pertinent data past the five-year expiration date because of these pending lawsuits. This request was shot down by FISC judge Reggie Walton, who stated that holding Americans' data past the disposal date put the surveillance programs on shaky Constitutional grounds, while also pointing out that the government's arguments relied on caselaw dealing with the retention of corporate documents, something which clearly wasn't in the same league as data collected on Americans.

Shortly thereafter, a federal court handling two lawsuits (Jewel v. NSA [this is an EFF lawsuit originally filed in 2008], First Unitarian Church v. NSA) centered on NSA domestic surveillance issued a temporary restraining order on the destruction of relevant metadata. This was brought about by the DOJ's announcement that it would begin destroying the relevant data for these two cases based on Walton's February order.

This is where the DOJ starts looking very shady, according to Judge Walton's recounting of the events.

The March 10 Motion further indicated that one of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-0603 (N .D. Cal.) remains in litigation, and the MDL preservation order remains in effect for that case. Additionally, the March 10 Motion stated that the Jewel case, which was filed in 2008, was designated by the District Court as a related action to the Hepting matter, and that Court entered an evidence preservation order in Jewel, based on the MDL evidence preservation order, which remains in effect. LCL The March 10 Motion noted that the plaintiffs in Jewel and First Unitarian contacted the government on February 26, 2014, regarding the relevance of these preservation orders to the February 25 Motion, and made a "specific request" that the government inform the FISC of their existence.

The plaintiffs asked the government to inform the FISC about their existence so that their data could be retained as well. That never happened. Instead, they were forced to file a Temporary Restraining Order in order to prevent this data destruction. This was granted by the circuit court judge and brought to the FISA Court, where Judge Walton ordered the extended retention of data specifically related to these cases. In its response filing, the DOJ had this to say about the plaintiffs who asked them to speak to the FISA court.

A footnote in the March 13 Response indicated that, "[c]ontrary to their representation . . . [the m]ovants did not make a 'specific request' that the government inform this Court about the preservation orders in Jewel and Shubert."

The DOJ included (as an exhibit) email correspondence between it and the plaintiffs of the lawsuit as support for its claim that no request was made. Upon review by Judge Walton, that assertion was false. Walton gives the government an out by claiming it may have just misperceived which surveillance program was being discussed (Section 215 vs. an "executive authority" program -- Section 501), but even then, he points out that the plaintiffs disagreed with the DOJ's reading of the situation.

From this point on, Walton takes the DOJ to task for deceiving the court (whether deliberately or otherwise).

As the govemment is well aware, it has a heightened duty of candor to the Court in ex parte proceedings. Regardless of the government's perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northem District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion. [E-mail Correspondence at 6-7.] The fact that the plaintiffs had this understanding of those preservation orders -- even if the government had a contrary understanding - was material to the FISC's consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court's statement, based on the information provided by the government in the February 25 Motion, that "there is no indication that any of the plaintiffs have sought discovery of this information or made any effort to have it preserved.

The above might be written off as a failure to communicate, but Walton's next paragraph details even more DOJ malfeasance.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of Califomia.

The next filing entered should be rather informative, based on Walton's demands.

It is FURTHER ORDERED that the government shall make a filing with this Court pursuant to Rule 13(a) of the United States Foreign Intelligence Surveillance Court Rules of Procedure Rules of Procedure") no later than April 2, 2014. As part of this filing, the government shall explain why it failed to notify this Court of the preservation orders in Jewel and Shubert and of the plaintiffs' understanding of the scope of those orders, upon learning that plaintiffs' counsel viewed those orders as applying to the Section 501 telephony metadata at issue in the February 25 Motion.

This latest order from Judge Walton shows that the government wants to destroy data that might be used as evidence. There was some back-and-forth previous to this, but the DOJ probably had a good idea what Judge Walton would say back in February when it showed up to ask to hold on to domestic surveillance records indefinitely, deploying civil litigation guidelines and common law requirements as its only rhetorical weapons. Walton refused and the DOJ went happily off to tell plaintiffs that the FISA court had overridden their existing preservation orders. If the plaintiffs hadn't asked for a temporary restraining order, it might have gotten away with it.

from the blind-justice dept

Despite two earlier rulings that the US Justice Department needed to provide Kim Dotcom and others involved in Megaupload with the actual evidence being used against them for the extradition trial, an appeals court overturned those rulings and now the New Zealand Supreme Court has agreed in rejecting the request. While the chief judge dissented, the majority found that the extradition treaty does not require the country that has filed the charges against the individuals to provide the information and that the New Zealand courts have no real authority to order the US DOJ to provide the evidence. It does seem rather ridiculous that someone can be sent halfway around the world to face criminal charges without first being able to see the evidence against them, but that's apparently the law in New Zealand. They might want to fix that.

Either way, the actual extradition trial was recently pushed back until July (it had been scheduled to start in a few weeks). Seems quite bizarre that they're only just getting to the trial over extradition nearly two and a half years after Megaupload was seized and shut down. The judicial process isn't exactly known for its speed, which is kind of crazy when you realize how quickly (and with such flimsy evidence) DOJ and New Zealand officials acted to arrest Kim Dotcom and his colleagues.

from the oops dept

I have to admit that I'm consistently amazed at just how badly law enforcement in both the US and New Zealand appeared to screw up the raid and the case against Kim Dotcom. I've said it a few times before, but it really feels like authorities in both places actually believed the bogus Hollywood hype being spread by the MPAA about how Dotcom was really a James Bondian-villain, and acted accordingly, while ignoring any evidence to the contrary. As you know by now, the New Zealand equivalent of the NSA, the GCSB, illegally spied on Kim Dotcom and other New Zealand residents and citizens -- and the New Zealand government then decided to try to hide that. While the police agreed that the spying was illegal, they declined to do anything about it, so Dotcom sued the government himself.

The latest news in this: GCSB appears to have deleted key evidence in the case in a hamfisted attempt to cover up its illegal activities. Even more ridiculous, GCSB is trying to cover this up by claiming that the material had "aged off" -- implying that it was deleted automatically. New Zealand Prime Minister John Key claims that they had to delete the information under the law.

Of course, there are a few problems with that. The first is that under New Zealand law, like most countries these days, parties have an obligation to preserve documents likely to be necessary in a legal case. But, even more damning is that there's video of John Key in the New Zealand Parliament trying to defend against an earlier claim that GCSB had deleted some evidence by insisting that GCSB does not delete anything ever:

In the video, he notes: "This is a spy agency. We don't delete things. We archive them. And they went right back to the ultimate source document, and asked themselves the question: Has there ever been a deletion? And the answer was NO!!" And yet now he's claiming that it's normal everyday policy to delete key evidence?

from the americans-don't-like-it dept

Last summer, Reuters revealed how the NSA and other surveillance organizations would share info with the DEA and other law enforcement agencies, but then tell them to reconstruct the evidence via a process called "parallel construction," so that the surveillance would not then be discussed in court. This is highly questionable, and probably illegal, as a defendant has the right to know all of the evidence being used against him or her, and should also be told how that evidence was gathered, to make sure the collection was legal. But what's being done with parallel construction, is that the intelligence community is able to give "hints" to law enforcement, allowing them to come up with various pretenses for an investigation, avoiding ever having to reveal that the NSA or others used potentially illegal surveillance efforts. One example given in that Reuters report was how DEA agents would suddenly be given a tip like this: "Be at a certain truck stop at a certain time and look for a certain vehicle." The DEA would then have the local police come up with some pretense to stop the truck... and then when evidence is found they can claim it was a random traffic stop, when the reality is anything but that.

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden's satellite phone and then pin point his location, they don't have to go to a court to get permission to put a missile up his nose.

We are bound, however, by different rules.

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods.

To use it....we must properly protect it.

There are also training materials that discuss how parallel construction works, as well as the fact that in "the new post-9/11" era, a "national consensus" has been formed making it easier for the intelligence community and law enforcement to share information. It even refers to the federal courts as the intelligence community's "nemesis."

A lot of the documentation deals with how to deal with having classified information, and the focus seems to be on keeping that information away from anyone involved in the case. There is -- I kid you not -- a special group of prosecutors called "the Taint Review Team" -- to be called in when things get... well... tainted.

In one part of the presentation, they talk about all sorts of ways to try to get a judge to avoid revealing classified information to defendants, and then have a plan "if all else fails" which includes redoing the indictment or dropping the case. That same presentation shows that there should be a "see no evil" plan -- which explains why DEA agents are often just told "go to this truck stop and look for this truck" without knowing any more. That way they "saw no evil" with evil being defined as questionably obtained intelligence.

It appears that much of the DEA's arguments here rely on the Supreme Court's ruling in 1938 in Scher v. United States, in which a law enforcement agent was told some things by a source, and used that information to find and arrest the defendant handling whiskey (during Prohibition). The court said that how the agent found out about the information doesn't matter, so long as the agent saw illegal acts himself. And thus, the Supreme Court "enabled" the idea of parallel construction. That case pops up repeatedly throughout the documents, basically telling DEA agents: expect information to come from intelligence sources, but do your best to never find out why they know this stuff.

Another presentation asks "what is the problem with combining IC (Intelligence Community) collection efforts & LEA (Law Enforcement Agency) investigations in US courtrooms?" and then explains that it presents constitutional problems... and that "Americans don't like it!"

The note on that one points out that "even though we seek to protect our citizens, generally, we can only use techniques to achieve that objective, which are acceptable to our citizens." But that's not what they're actually doing or teaching. Instead, they're teaching how to keep doing the constitutionally questionable things that Americans don't like... and then hiding it from the courts, the American public and even the law enforcement folks themselves, in order to create a sort of plausible deniability that launders the fact that potentially illegal and unconstitutional surveillance was used to create the basis of the legal case.

There's some more information in the documents, but it all basically points to the same basic thing: the less that law enforcement folks know, the better. If the law enforcement knows too much, call in the "Taint Review Team" to see what they can do to clean up, and see what you can use to get the judge to exclude classified evidence. All in all, it adds up to a nice little plan to allow the NSA to illegally spy on people, tell law enforcement just enough to target people, without ever revealing how they were caught via unconstitutional means.

from the bust-a-rhyme,-do-a-dime dept

Other than when it's on television or in a movie, the legal system is a place where rules are supposed to be followed so that justice might be done. Legal dramas where attorneys get creative with how to prosecute alleged criminals make for interesting entertainment, but nobody facing legal action wants to see much in the way of a deviation from the accepted practices. Yet, that seems to be what's happened in cases involving anyone who has engaged in rap music.

At issue is a prosecutor’s extensive use of rap lyrics, composed by a man named Vonte Skinner, as evidence of his involvement in a 2005 shooting. During Mr. Skinner’s trial in 2008, the prosecutor read the jury 13 pages of violent lyrics written by Mr. Skinner, even though all of the lyrics were composed before the shooting (in some cases, years before) and none of them mentioned the victim or specific details about the crime.

It seems hard to justify the use of lyrics like this as anything other than a cynical attempt to influence the jury with what is likely unfair character assassination. Any "gangster rap" artist is going to have lyrics in their songs that read like the manifesto of a criminal. That, however, does not make that person a criminal. Music is art, after all, and nobody goes around suggesting that Gwar actually wants to eat your children, that Martin Scorsese is part of the mob, or that John Carmack murders uber-demons in his spare time. Gangster rap has grown up and been commercialized so that it's as authentic as Kraft American Singles cheese and mostly as palatable. Some gangster rappers are as "gangster" as the teenage surburbanite children who listen to it so faithfully. In the case of Skinner, the other evidence used against him was testimony by witnesses that told more stories than Stephen King. Still, he was convicted by the jury, though that conviction was later overturned.

But in 2012, the conviction was overturned by an appellate court that ruled that the lyrics should never have been admitted as evidence. The majority opinion stated, “We have a significant doubt about whether the jurors would have found defendant guilty if they had not been required to listen to the extended reading of these disturbing and highly prejudicial lyrics.” The state appealed the ruling to the Supreme Court.

Which is why that case is now before New Jersey's Supreme Court. And, if studies are any indication, they should probably find that heavy reliance on such lyrics prejudice the jury beyond the realm of justice.

To address this question, Stuart Fischoff, a psychologist at California State University, Los Angeles, conducted a study in the late 1990s to measure the impact of gangsta rap lyrics on juries. Participants were given basic biographical information about a hypothetical 18-year-old black male, but only some were shown a set of his violent, sexually explicit rap lyrics. Those who read the lyrics were significantly more likely to believe the man was capable of committing a murder than those who did not.

So, where's the line? It's not an easy question to answer, because these lyrics and thoughts most often do come from the accused in these cases, yet the fact that they're artistic expression leaves plenty of room for debate on their usefulness in the case or authenticity in general. It's worth noting that no other genre of art is used in this manner in such a widespread way as rap music. What does that mean? Likely that enthusiastic prosecutors with their win/loss totals in their mind's eye are using them because they haven't been told not to yet. Perhaps that will change soon.

from the pernicious-law dept

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

For example, the DOJ discusses Skype chats and emails in which Megaupload employees discuss ways in which they might prevent some infringement from happening, and at other times say things like "I have the feeling that Kim tolerates a certain amount of copyright infringement." While the DOJ seems to think these are damning, it seems like the opposite. It seems clear from a statement like the one quoted that "enabling infringement" wasn't a focus of the operation. After all, if the company was so focused on profiting from infringement, wouldn't it be clearly known and wouldn't it be openly discussed as such? Saying that you think the boss "tolerates a certain amount of copyright infringement" suggests, without any direct evidence, that the company recognizes it needs to deal with the infringement effort, but that there are tradeoffs there. IF the company was really a "piracy conspiracy" as the DOJ and the MPAA like to claim, then you'd think the comments would be much more along the lines of direct quotes about figuring out ways to enable much more infringement. Instead, you get discussions of ways to possibly stop more infringement:

“Maybe we should automatically delete videos on Megavideo that are longer than 30 minutes and have more than XXX views or something because I still see so much piracy that is being embedded.”;

That doesn't sound like something coming from a company that is interested in building a business around infringement. It sounds like a cloud storage provider struggling with the best way to provide the best service possible, while thinking through ways to limit infringement.

As far as I can tell from these snippets, the DOJ seems to be arguing "well, they knew the service was used for infringement, thus they're guilty for not stopping it." But that's not (at all) how the law works. As was found in the Viacom/YouTube case, company officials need to be aware of specific cases of infringement (such as via a clear and complying takedown notice) rather than general knowledge that the platform is used (even widely) for infringement.

Once again, while you never know how a judge might read these statements out of context when presented in the worst possible light by a DOJ that's in-bed with the MPAA, the striking thing to me is that the evidence is so weak. Given just how much the MPAA made Kim Dotcom out to be pure evil, I honestly expected real evidence of an operation built around infringement. The DOJ's case is stunningly weak here. If I were working at the DOJ, honestly, I'd be hoping that the extradition attempt fails, because actually pursuing this case in court runs a very serious risk of a huge embarrassment for the government, bringing a highly questionable case on the weakest of evidence, presented entirely out of context.

from the complete-failure dept

For months now, NSA defenders have argued repeatedly that the bulk metadata programs were necessary to stop terrorist attacks. For a while they were throwing around the claim of "54 thwarted terrorist events" which some (falsely) pretended meant 54 thwarted attacks. However, the numbers have been debunked repeatedly by people looking into them. Multiple Senators have debunked the idea that the bulk metadata collection was useful. Senator Patrick Leahy said that his own review of a classified list of what the program was necessary for did not show that it was used to thwart terrorist attacks. Separately, Senators Ron Wyden, Mark Udall and Martin Heinrich went so far as to file an amicus brief stating that they've yet to see any evidence that the program has been useful.

So it's been pretty obvious to many of us that the claims of the necessity of this particular program have always been on shaky grounds -- but those calling bull on the program were widely seen as being already against those programs, and the NSA hadn't had it's "day in court" -- so to speak -- to defend the usefulness of the programs. That's partly why the two big moves against the NSA program from the past few days are so interesting. In both the district court ruling against the NSA and in the White House's own independent task force's proposals for reform, the US government had clear opportunities to defend the programs -- and in both cases, it appears that the court and the panel were shocked to find that the NSA basically had absolutely nothing to show to suggest the programs were actually useful.

In the ruling by Judge Richard Leon, there's a very telling footnote, number 65, where he notes the following:

The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA's surveillance programs have prevented fifth-four terrorist attacks, no proof of that has been put before me.

The judge then points to multiple sources (including those that we mentioned earlier) debunking the claims.

But the response from the review panel -- which, again, included a recent former CIA director and anti-terorrism Czar in the White House -- was even more telling. It appears they fully expected some details on how these programs had been used to stop terrorists, but the fact that the NSA couldn't show any such evidence seemed to leave them flabbergasted. Here's panel member Geoffrey Stone explaining to NBC the shock the panel felt:

“It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”

While Stone said the mass collection of telephone call records was a “logical program” from the NSA’s perspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.”

“We found none,” said Stone.

Given all this, are NSA defenders like Rep. Mike Rogers, who has flung around the totally bogus 54 number, even directly in an appeal to block the defunding of the program, still going to lie to the American public in claiming this program is necessary? A court and an investigative panel, both of whom found that the claim is completely unsubstantiated.